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Obamacare Unconstitutional!

Posted Dec 26 2010 5:26am
I begin this post a few thousand feet in the air, in the aisle seat in the rear of the aircraft. I suppose it is fitting that a gastroenterologist would be in the rear section. Fair is fair. Flying is a psychological test of one’s mettle. After enduring the security process, which is designed to find bad stuff instead of bad people, there are other layers of hassle to face. When I reached the cabin door, I was told that there was no available overhead space to store my bag. This development is often tolerable, as gate-checked bags are brought directly up to the arrival gate walkway after arrival, so you can avoid the hand-to-hand combat of the baggage claim arena. Not this time. For reasons, known but to the Almighty, my bag will be directed to the baggage claim, where I hope and pray that I will be properly reunited with it. Meanwhile, I will enjoy the luxury of an airline seat that would be quite comfortable for an average sized 4th grader. If the lady in front of me tilts her seat back, and my tray table is extended, then I will receive a Heimlich maneuver. Who knows? Maybe this could save my life if she leans back at the moment that the filet mignon I will be served gets trapped in my trachea.

Obamacare has hit an important judicial roadblock when Federal Judge Henry Hudson of Virgina ruled that the individual mandate was unconstitutional. Judge Hudson is the 3rd federal judge to rule on the constitutionality of the president’s health care plan. The first two judges gave the law a pass. Earlier today, oral arguments began in a Pensacola, Florida federal court before a judge who is suspected to harbor constitutional concerns of the health care plan. Already, 4 federal courts are involved, and it’s only 9 months since the law was signed. This is going to be a rocky road, and no one can predict the ultimate outcome. It is likely that the Supreme Court will ultimately have to reconcile various diverging views from lower Federal district and appellate courts. This emphasizes that a president who fills vacancies in the Supreme Court has a powerful tool to protect his policies against legislative threats and reversals.

Of course, courts are not supposed to make policy. They are charged to determine if an action or a law is lawful. Often, court decisions are criticized by folks who are not happy with the outcome, even though the legal issue before the judges may be arcane and not directly related to the actual issue. For example, the headline may read: “Judge Rules that Hospital May Withhold Chemo from Child with Cancer”, but the legal issue may be far removed from this emotional vignette. I’m not suggesting that judges rule in a robotic fashion without compassion or considering their own human experiences. I do feel, however, that it is not their role to depart from the law to provide extrajudicial remedies that should originate elsewhere. While the law does evolve, this is a gradual process that respects precedent and judicial restraint, at least in my view.

Is Obamacare constitutional? I have no idea. If a handful of wizened judges can’t agree, I don’t think that a mere colonoscopist in Cleveland should opine on the issue. Despite its legality, it remains a very unpopular law. Polling still shows that the majority of Americans would like the law totally or partially repealed, while 43% of us approve of the plan. This does not augur well for the president, since the tough medicine in his plan won’t appear for a number of years. Of course, Obama could dodge the fallout, which is inevitable if the law survives. He could be a ‘one termer’ and leave the angry mess to his successor. 

This is how the issue appears from 30,000 feet.  How does it look to you on the ground?
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